to 

V 


THE 


I  SHERMAN  RAILROAD  BILL 


The  Powers  of  Congress  in  Relation  Thereto. 


WASHINGTON. 

1869. 


3  I  Lacid  •TO  44  £  tYrta  1  d 


\/']‘Vc|  /lx 


THE  SHERMAN  RAILROAD  BILL  AND  KINDRED 
BILLS,  AND  THE  POWERS  OF  CONGRESS  IN 
RELATION  THERETO. 


Mr.  Sherman  has  opened  the  debate  in  the  Senate  upon  the 
Bill  reported  by  the  special  committee  of  which  he  is  the 
chairman.  He  states  the  whole  case  of  those  who  favor  such 
legislation.  It  is  proper,  therefore,  to  review  such  portions  of 
his  argument  as  relate  to  this  question. 

Mr.  Sherman,  in  the  first  place,  asserts  that  the  Act,  which 
he  proposes,  ought  to  he  passed  because  “the  only  access  from 
the  North,  East  or  West  to  Washington  is  by  one  railroad, 
and  that  a  feeder  or  branch  of  the  Baltimore  and  Ohio  Bail- 
road/  ’ 

I  might  comment  on  the  logic  of  the  argument,  which  main¬ 
tains  the  necessity  of  new  lines  of  railway  from  Washington  to 
New  York ,  to  Cleveland ,  and  to  Pittsburg ,  because  there  is  now 
only  one  road  between  Baltimore  and  Washington ,  and  because 
that  one  road  is  a  branch  of  the  Baltimore  and  Ohio  Bailroad. 
I  will  not,  however,  pause  to  make  such  criticism. 

Mr.  Sherman  further  says  that  “Congress  has  exclusive 
jurisdiction  over  all  matters  in  this  District,  and  this  authority 
involves  the  duty  to  secure  them  modes  of  transit  equal  to  those 
enjoyed  by  other  cities  within  the  jurisdiction  of  a  State.  Has 
this  duty  been  performed?  Is  the  access  to  Washington  such 
as  is  commensurate  with  the  importance  of  this  city  as  the 
home  of  one  hundred  thousand  persons  or  as  the  political  capi¬ 
tal  of  the  United  States?  Is  the  branch  of  the  Baltimore  and 
Ohio  Railroad  a  reasonably  sufficient  agency  to  transport  all 
those  whose  business  or  pleasure  calls  them  here,  and  the 
supplies  necessary  for  their  maintenance?” 

The  authority  of  Congress  to  deal  with  railroad  facilities 
within  the  District  of  Columbia  is  fully  conceded.  Mr.  Slier 
man  will,  however,  scarcely  deny  that  the  Washington  Branch 


4 


of  the  Baltimore  and  Ohio  Railroad  is  sufficient  to  transport 
through  the  District  all  persons,  from  the  East,  West  and 
North,  who  seek  the  Capital  either  on  pleasure  or  business,  and 
all  supplies  from  those  points  intended  for  the  use  of  the 
inhabitants  of  Washington,  and  of  the  strangers  temporarily 
sojourning  there. 

If,  however,  the  Washington  Branch  of  the  Baltimore  and 
Ohio  Railroad  was  not  sufficient  for  these  purposes,  would  Mr. 
Sherman  he  justified,  for  this  reason ,  in  providing  for  the 
building  of  other  railroads  in  States  and  localities  in  which 
the  needs  of  the  traveling  public  were  fully  supplied? 

Nor  will  I  discuss  the  tax  imposed  by  the  State  of  Maryland 
on  travel  over. the  Baltimore  and  Ohio  Railroad.  If  that  State 
has  the  constitutional  power  to  impose  such  a  tax,  it  is  abun¬ 
dantly  justified  both  in  imposing  and  collecting  it. 

It  has  invested  more  than  fifteen  millions  of  dollars,  in  prin¬ 
cipal  and  interest,  in  the  Chesapeake  and  Ohio  Canal,  which 
carries  the  wealth  of  the  mineral  and  agricultural  sections  of 
Maryland  into  the  markets  of  the  District  of  Columbia,  but 
yields  not  one  cent  of  revenue  to  the  State  which  bore  the 
burden  of  the  outlay. 

It  has  been  urged,  I  am  aware,  that  the  opinion  of  the 
Supreme  Court  of  the  United  States  in  the  case  of  Crandall  vs. 
The  State  of  Nevada ,  reported  in  6  Wallace  S.  C.  R.,  p.  39,  is 
in  direct  opposition  to  the  constitutionality  of  the  tax. 

Opinions,  however,  may  differ  on  this  point.  If  the  tax  to 
which  objection  is  made  is  legal ,  it  can  be  supported  on  every 
moral  ground  ;  and  Mr.  Sherman  has  no  right  to  denounce 
it,  until  the  question  of  law  is  decided. 

If,  in  his  judgment,  it  is  not  a  constitutional  tax,  why  is  not 
this  question  tested  directly  in  the  courts  ? 

Must  three  colossal  lines  of  railway  be  built,  extending  over 
many  States,  because  there  is,  as  Mr.  Sherman  charges,  an 
unconstitutional  law  among  the  statutes  of  one  State,  imposing 
a  tax  on  passengers  through  that  State? 

The  right  of  the  State  to  impose  the  tax,  if  it  has  such  a 
right,  will  not  be  evaded  by  granting  charters  to  new  roads 
passing  through  that  State,  even  if  such  charters  contain  an 


5 


inhibition  of  the  taxing  power  by  the  States,  through  which 
the  proposed  railways  may  pass.  The  State  may  proceed  to 
tax  the  gross  receipts  of  such  roads  from  passengers  notwith¬ 
standing  ;  and  the  question  will  then  he  precisely  where  it  is 
to-day — it  must  he  litigated  in  the  courts. 

If,  then,  the  alleged  unconstitutional  tax,  levied  by  the 
State  of  Maryland,  he  the  evil  which  makes  the  proposed  legis¬ 
lation  necessary,  why  not  manfully  provide  for  making  a  case 
to  test  this  legal  question,  instead  of  chartering  three  railroad 
companies,  which  may  increase  the  evil,  but  cannot  prevent  it  ? 

It  is  difficult  to  suppose  that  Mr.  Sherman  is  serious  when 
he  urges,  as  his  chief  argument  for  the  three  great  trunk  lines 
provided  for  in  his  bill,  the  following  points  founded,  exclusively , 
on  the  case  of  the  Washington  Branch  Railroad. 

u  1.  That  the  profit  of  the  Washington  Branch  is  grossly 
out  of  proportion  to  the  cost  of  the  branch. 

“  2.  That  it  is  not  a  direct  route  except  to  Baltimore. 

“  3.  That  it  is  not  a  convenient  route,  but  denies  the  usual 
facilities  of  travel  except  to  Baltimore. 

u  4.  That  it  is  not  a  cheap  route,  but,  though  very  profitable, 
is  more  expensive  than  any  similar  short  line,  and  is  used  to 
levy  for  the  State  of  Maryland  an  unconstitutional  tax.” 

For  does  it  not  appear  from  this  statement  that,  in  the  judg¬ 
ment  of  Mr.  Sherman,  Congress  may  authorize  a  railroad  to  be 
built  whenever  the  profits1  of  existing  roads  are,  in  its  judg¬ 
ment,  too  great ; 

Or  whenever  the  existing  road  is  not,  in  its  judgment,  a 
direct  route  ; 

Or  whenever  the  existing  route  is  inconvenient  or  uncomfort¬ 
able  f 

And  does  it  not  further  appear  that  the  only  way  which 
occurs  to  him  of  avoiding  the  payment  of  an  unconstitutional 
tax  on  an  existing  road  is  to  build  a  new  road  f 

I  submit  that  every  reason,  given  by  Mr.  Sherman  in  support 
of  his  bill  would  authorize  Congress  in  undertaking  the  cus¬ 
tody  of  the  hotels  and  markets  of  the  chief  city  of  the  District 
of  Columbia,  and  of  all  the  cities  on  the  routes  of  travel  to  the 
Capital. 

Their  profits  are  out  of  all  proportion  to  the  cost  of  provi¬ 
sions. 


6 


They  are  not  in  general  conveniently  located. 

T hey  make  very  few  people  comfortable. 

They  are  not  cheap,  but,  though  very  profitable,  are  more 
expensive,  than  those  in  other  localities. 

If  the  Baltimore  and  Ohio  Bailroad  Company  has  ever 
exceeded  its  chartered  powers,  as  to  rates  within  the  District  of 
Columbia,  or  elsewhere,  the  courts  of  the  land  afford  the  means 
of  redress. 

It  is  denied  that  it  has  so  offended. 

Would  it  not  be  well  for  Senator  Sherman  to  see  that  his 
charges  are  capable  of  proof,  before  he  urges  them  before  the 
Senate  of  the  United  States  ? 

But  the  question  is  not  only  whether  Congress  ought  to  pass 
this  Bill.  It  is  whether  Congress  has  the  power  to  pass  this 
Bill. 

We  do  earnestly  believe  that  the  proposed  exercise  of  power 
is  unconstitutional. 

The  earliest  record  of  the  history  of  the  Constitution  of  the 
United  States  is  at  variance  with  the  existence  of  the  power 
claimed  to  be  exercised  by  this  Bill. 

When  the  provisions  of  the  Federal  Constitution  were  under 
debate  in  the  Convention  which  formed  that  instrument,  on 
September  14,  1787,  it  was  proposed  to  add  to  the  powers  of 
Congress  a  power  to  cut  canals. 

The  whole  debate  on  the  subject  is  full  of  interest,  and  we 
beg  leave  to  quote  it,  as  reported  by  Madison  : 

“  Dr.  Franklin  moved  to  add  after  the  words  ‘  post  roads/ 
Art.  1,  sec.  8,  a  power  ‘  to  provide  for  cutting  canals  where 
deemed  necessary.’ 

“  Mr.  Wilson  seconded  the  motion. 

“Mr.  Sherman  objected.  The  expense  in  such  cases  will 
fall  on  the  United  States,  and  the  benefit  accrue  to  the  places 
where  the  canals  may  be  cut.” 

“Mr.  Wilson.  Instead  of  being  an  expense  to  the  United 
States,  they  may  be  made  a  source  of  revenue. 

“  Mr.  Madison  suggested  an  enlargement  of  the  motion  into 
a  power  c  to  grant  charters  of  incorporation  where  the  interests 
of  the  United  States  might  require  and  the  legislative  pro¬ 
visions  of  individual  States  may  be  incompetent.’  His  primary 
object  was,  however,  to  secure  an  easy  communication  between 
the  States,  which  the  free  intercourse  now  to  be  opened  seemed 


7 


to  call  for.  The  political  obstacles  being  removed,  a  removal 
of  the  natural  ones,  as  far  as  possible,  ought  to  follow. 

“  Mr.  Randolph  seconded  the  proposition. 

“  Mr.  King  thought  the  power  unnecessary. 

“  Mr.  Wilson.  It  is  necessary  to  prevent  a  State  from  ob¬ 
structing  the  general  welfare. 

“  Mr.  King.  The  States  will  be  prejudiced  and  divided  into 
parties  by  it.  In  Philadelphia  and  New  York  it  will  be 
referred  to  the  establishment  of  a  bank,  which  has  been  a  sub¬ 
ject  of  contention  in  those  cities.  In  other  places  it  will  be 
referred  to  mercantile  monopolies. 

“Mr.  Wilson  mentioned  the  importance  of  facilitating  by 
canals  the  communication  with  the  western  settlements. 

“  The  motion  being  so  modified  as  to  admit  a  distinct  ques¬ 
tion,  specified  and  limited  to  the  case  of  canals,  Pennsylvania, 
Virginia  and  Georgia  voted  for  the  proposition  ;  New  Hamp¬ 
shire,  Massachusetts,  Connecticut,  New  Jersey,  Delaware, 
Maryland,  North  Carolina  and  South  Carolina  voted  4  No.’  ” 

The  refusal  by  the  Convention  to  give  to  Congress  .the 
power  to  grant  charters  of  incorporation  for  such  canals  as  might 
be  deemed  necessary,  at  a  period  when  canals  were  relied  on  as 
the  great  means  of  developing  the  resources  of  the  country, 
must  be  taken  as  an  answer  to  any  claim  for  the  constitution¬ 
ality  of  such  Bills. 

James  Madison,  Alexander  Hamilton,  Albert  Gallatin,  and 
Thomas  Jefferson,  each  and  all,  have  clearly  stated  that  Con¬ 
gress,  under  the  Constitution,  did  not  possess  the  power  to 
create  a  corporation  capable  of  making  a  canal  within  a  State 
without  its  consent ;  and  it  cannot  be  supposed  that  they  would 
have  entertained  any  different  theory  in  relation  to  the  con¬ 
struction  of  a  railroad. 

Such  being  the  express  action  of  the  Convention  which  framed 
the  Constitution,  and  such  the  opinions  of  its  framers  and  chief 
expounders,  it  is  sufficiently  evident  why  no  appropriation  ever 
was  made  for  any  internal  improvement  by  the  General 
Government  for  many  years  after  the  adoption  of  the  Federal 
Constitution. 

The  legislation  of  Congress  in  reference  to  the  Cumberland 
Road  cannot  be  drawn  into  a  precedent  for  the  Bill  creating 
a  corporation  and  vesting  it  with  powers  of  eminent  domain. 

It  is  perfectly  well  known  that  by  the  Act  of  April  30,  1802, 
Congress  proposed  to  the  convention  which  formed  the  Consti- 


8 


tution  of  Ohio  to  grant  to  the  new  State  five  per  cent,  of  the 
net  proceeds  of  the  future  sales  of  public  lands  within  its 
boundaries,  to  be  applied  to  the  purpose  of  making  public  roads, 
leading  from  the  navigable  waters  emptying  into  the  Atlantic, 
to  the  said  State  and  through  the  same. 

But  it  was  expressly  provided  in  the  Act  that  such  roads 
should  be  laid  out  under  the  authority  of  Congress,  “  with  the 
consent  of  the  several  States  through  which  the  road  shall  pass.” 

This  power,  which  Congress  proposed  to  exercise  only  with 
the  consent  of  the  States  within  which  it  was  to  be  employed, 
was,  moreover,  avowedly  assumed  in  consideration  of  an  agree¬ 
ment  to  be  entered  into  by  the  State  of  Ohio  to  exempt  the  land 
sold  by  the  United  States,  within  her  territory,  from  taxation 
for  five  years  from  the  date  of  such  sale. 

The  State  of  Ohio  formally  accepted  this  proposition;  and  it 
remained  an  operative  agreement  until,  by  the  Act  of  March  3, 
1803,  at  the  request  of  Ohio ,  three  of  the  five  per  cent,  already 
referred  to  was  appropriated  to  the  construction  of  roads  within 
that  State. 

This  act  left  two  per  cent,  only  of  the  net  proceeds  of  the 
sales  of  the  public  lands  applicable  to  the  construction  of  roads 
leading  from  the  Atlantic  to  the  State  of  Ohio. 

By  the  act  of  March  29,  1806,  Congress,  in  pursuance  of  this 
agreement  with  the  State  of  Ohio,  directed  the  laying  out  of  a 
road  from  Cumberland  to  the  State  of  Ohio,  the  expense  of  ivliich 
was  to  be  paid  out  of  the  fund  of  two  per  cent .  already  ref  erred  to. 
But  it  was  expressly  provided,  in  this  last-mentioned  act,  that 
before  the  said  road  was  made  the  consent  of  the  State ,  or  States, 
through  which  it  would  pass ,  should  be  obtained. 

The  State  of  Maryland,  by  the  act  of  January  4,  1807,  gave 
the  required  assent ;  and  the  State  of  Pennsylvania,  in  April, 
1807,  and  the  State  of  Virginia,  near  the  same  period  of  time, 
also  gave  their  assent. 

So  far  as  this  precedent  is  concerned,  it  cannot  in  any  way 
avail  the  advocates  of  this  Bill. 

Nor  is  the  legislative  history  of  the  country  less  explicit  when 
we  seek  its  aid  in  discovering  the  constitutional  powers  of 
Congress. 


9 


We  learn  from  the  veto  message  of  President  Madison,  trans¬ 
mitted  to  Congress  on  March  3,  1817,  that  this  eminent  states¬ 
man  was  not  able  to  derive  a  power  to  construct  roads  and 
canals  either  from  the  power  “  to  regulate  commerce  among  the 
several  States/’  or  from  the  power  Cc  to  provide  for  the  common 
defence  and  general  welfare.” 

President  Monroe,  though  strongly  convinced  of  the  advan¬ 
tage  of  such  improvements,  as  is  testified  by  his  inaugural 
address  on  the  5th  of  March,  1817,  was  yet  satisfied  as  he  clearly 
disclosed  in  his  message  of  December  2,  1817,  that  Congress 
did  not  possess  the  right  to  authorize  such  works.  In  his 
special  message  of  May  4,  1822,  returning  with  his  objections 
to  the  House  of  Representatives  the  Bill  for  the  preservation 
and  repair  of  the  Cumberland  Road,  he  stated  the  constitutional 
difficulties,  opposing  the  exercise  of  such  a  power  by  Congress, 
in  so  clear  and  definite  a  form,  that  it  would  be  superflous  to 
repeat  here  his  reasoning.  It  belongs  to  the  Constitutional 
History  of  the  Government,  and  is  familiar  to  the  country. 

President  Jackson  in  the  Maysville  Road  veto  of  May  27, 
1830,  followed  substantially  the  reasoning  of  President  Monroe. 

It  will  not  he  pretended  that  any  higher  authority  than  is 
contained  in  these  references  can  be  brought  to  hear  on  this 
question. 

I  do  not  profess  to  know  what  the  Supreme  Court  will 
decide  when  a  case  is  properly  brought  before  it. 

In  the  case  of  Gray  vs.  Clinton  Bridge ,  decided  in  Iowa  in 
1867,  Justice  Miller,  one  of  the  judges  of  that  court,  has  taken 
the  trouble  to  travel  beyond  the  record  of  the  case  before 
him,  and  to  give  his  individual  opinion ,  as  a  citizen ,  that 
Congress  has  the  right  to  prescribe  all  needful  regulations  for 
the  conduct  of  railroad  trafic  over  any  railroad  forming  a  part 
of  the  lines  of  inter-State  communication,  and  may  also  author¬ 
ize  the  creation  of  such  roads ,  when  the  purposes  of  inter-State 
transportation  of  persons  and  property  justify ,  or  require  it. 
Judge  Redfield  has,  in  the  law  periodical  under  his  control, 
advocated  the  same  doctrine.  It  will  be  law  when  the  Supreme 
Co urt  so  holds ;  until  then,  it  is  a  mischievous  constitutional 
heresy.  The  dictum  of  Justice  Miller  in  support  of  the  power 
2 


10 


is  more  than  balanced  by  the  dictum  of  Justice  McLean  against 
the  power  in  the  Kock  Island  Bridge  case.  (6  McLean,  525.) 

If  Contress  has  the  power  to  provide,  by  direct  enactment, 
for  the  construction  of  railways  within  the  States,  and  to 
employ  the  agents  of  the  United  States  in  such  works,  it  does  not 
follow  that  it  can  delegate ,  irrevocably ,  this  power  to  private  per¬ 
sons ,  by  erecting  them  into  corporations ,  and  making  an  irrevocable 
contract  with  them.  The  grantees  in  such  a  contract  are  not  agents , 
whose  appointment  may  be  revoked ,  or  whose  authority  may  be 
modified.  They  are  principals  and  contracting  parties ,  who  are , 
thereafter ,  if  they  adhere  to  the  terms  of  their  contract ,  inde¬ 
pendent  of  the  control  of  the  Federal  or  State  Government ,  if 
the  legislation  creating  them  be  valid.  If  such  a  doctrine,  as 
Justice  Miller  contends  for,  is  true,  the  Congress  of  to-day 
might  create  what  corporations  it  pleased,  and  donate  to  them 
in  perpetuity,  and  to  the  destruction  of  many  States,  every 
available  route  of  railway  travel. 

It  may  be  true — though  I  deny  it — that  Congress  may  pro¬ 
vide  by  direct  enactment  for  the  construction  of  a  Government 
railway  within  a  State ;  but  it  cannot  make  a  provision  for  such 
a  work,  which  would  prevent  any  subsequent  Congress  from 
abandoning  that  route  and  adopting  another.  The  power  of 
eminent  domain  within  a  State  must  be  exercised  directly  by  the 
principal  in  such  case.  It  cannot  be  exercised  by  a  contracting 
party.  It  cannot  be  granted  by  the  Federal  Government  to 
corporations  acting  within  territories  in  which  the  authority  of 
the  State  is  concurrent,  even  if  it  be  not  exclusive. 

The  question  here  is  not  the  right  of  the  Federal  Govern¬ 
ment  to  appropriate  money  to  internal  improvements,  but  it  is 
as  to  the  right  of  the  Federal  Government  to  exercise  within  a 
State  not  only  all  the  power  which  the  State  can  exercise  in 
relation  to,  or  over  a  railroad,  if  it  had  authorized  it,  but  also  to 
exclude  the  very  courts  of  the  State  in  which  the  proposed  railroad 
is  located  from  taking  cognizance  of  acts  done,  or  omitted  to  be 
done,  within  the  State,  by  the  railroad  corporation  thus  created 
by  Federal  authority,  or  by  the  individuals  employed  by  it. 
For  it  cannot  be  denied  that  Mr.  Sherman’s  bill,  by  providing 
for  the  right  to  remove  all  such  cases  from  the  State  to  the 


11 


Federal  Courts,  practically  vests  an  exclusive  jurisdiction  over 
such  corporations  in  the  Federal  courts. 

Federal  doctrine  was  never  before  pushed  to  such  extremes 
of  practice. 

The  Supreme  Court  will  never  sanction  such  theories.  It 
will  not  hold  that  Congress  may,  without  the  consent  of  a 
State,  confer  the  power  of  eminent  domain  within  the  limits  of 
that  State  on  any  corporation.  It  will  not  hold  that  Congress 
can  exclude,  by  the  contrivance  of  the  removal  of  causes,  the 
jurisdiction  of  the  State  courts  from  attaching  to  persons  and 
property  within  the  boundaries  of  the  State.  It  will  recognize 
the  plain  truth  that  if,  under  the  Constitution,  the  United 
States  itself  could  not  acquire  land  for  a  fort  even,  or  exercise 
jurisdiction  over  the  very  limits  of  that  fort,  without  the  assent 
of  the  State  in  which  it  was  located,  it  could  not,  certainly, 
provide  by  law  for  vesting  title  to  land  in  a  private  corporation, 
and  for  excluding  the  jurisdiction  of  the  State  in  any  way  from 
persons  or  property,  without  the  consent  of  the  State  affected 
by  the  legislation. 

The  internal  improvements  of  the  country,  properly  so  called, 
owe  their  origin  to  the  munificence  of  separate  States,  or  to  the 
enterprise  of  individuals. 

This  munificence  and  this  enterprise  have  been  directed  to 
fostering  certain  natural  growths  of  commerce  and  industry; 
to  the  establishment  of  certain  natural  centres  of  trade,  and  to 
the  creation  of  means  of  communication  between  them. 

No  man  need  be  informed  how  wonderfully  this  system  has 
prospered,  and  how  certainly  this  State  system  of  internal 
improvement  has  served  to  diffuse,  over  the  whole  land,  to 
almost  an  equal  degree,  the  advantage  of  our  increasing  wealth 
and  population.  The  burden  of  bringing  the  people  _of  one 
State  into  communication  with  the  people  of  another  State,  has 
not  been  assumed  by  Congress.  Each  State,  and  the  people  of 
each  State,  have  been  left  to  devise  and  form  channels  of  inter¬ 
course  for  themselves. 

Instead  of  the  experience  of  the  Roman  Empire,  possessed  of 
grand  highways,  constructed  by  the  Government  througli  the 
Territories  under  its  control,  which  had  no  other  object  than  to 


12 


develop  the  greatness  of  the  one  city,  which  was  the  terminal 
point  of  these  many  routes,  our  established  system  has  as  many 
objects  as  our  States  have  commercial  centres  ;  and  what  our 
works  may  lose  in  length  and  in  grandeur  they  make  up  in 
practical  utility,  and  in  the  contentment  and  prosperity  of  our 
people. 

Therefore,  independently  of  all  constitutional  objections  to 
the  system  proposed  to  be  inaugurated  by  the  Bill  in  question, 
its  operation  would  he  both  unjust  and  dangerous. 

For  forty  years  the  Congress  of  the  United  States  has  stood 
a  spectator  of  the  enterprises  commenced  and  carried  on  under 
the  State  system,  until  these  have  reached  their  present  great 
extent  and  perfection.  To  the  energy  with  which  these  under¬ 
takings  have  been  conducted  and  managed,  is  owing  the  rapid 
success  of  the  Government  in  the  late  rebellion.  The  central¬ 
ized  railway  systems  of  France,  Austria  and  Bussia  never 
accomplished  as  much  for  these  Governments  in  time  of  war  as 
our  local  systems  of  railways  achieved  for  us  in  the  same  season 
of  strife.  Why  is  it,  when  we  have  reaped  such  advantage 
from  these  local  systems  in  time  of  war,  that  we  are,  when 
peace  has  returned,  seeking  to  impair,  by  national  legislation, 
all  confidence  in  their  stability  by  this  novel  mode  of  subordi¬ 
nating  them  to  the  influence  and  combination  of  political 
corporations  ? 

The  Congress  of  the  United  States  has  claimed  and  exercised 
the  power  of  authorizing  and  aiding  railroads  which  were  to  be 
built  through  its  Territories.  These  Territories  are  under  its 
peculiar  legislative  control,  and  constitute  a  common  property 
within  which  such  authority  may  be  exercised.  But  never¬ 
theless  it  may  be  asked  whether  Congress  is  so  well  satisfied 
with  the  wisdom  and  economy  of  its  railroad  legislation  for  the 
Territories  that  it  desires  to  repeat  the  experiment.  The 
extraordinary  and  prodigal  nature  of  its  grants  in  aid  of  these 
territorial  railways  may  serve  to  explain  the  reason  why  other 
applicants  are  crowding  in  battalions  to  share  in  the  expenditure, 
but  they  scarcely  serve  to  justify  the  experiment  of  a  repetition 
of  such  legislation  for  railways  within  the  States. 

What  necessity  exists  for  vesting  in  incorporators,  as  yet 


13 


unknoivn  to  the  country ,  the  enormous  powers  which  are  pro¬ 
posed  to  he  delegated  by  these  Bills?  What  claim  have  these 
unknown  corporators  ( for  the  names  men  tioned  in  the  Bill  may 
not  he  descriptive  of  one  individual  engage  d  in  the  undertaking 
hereafter)  to  privileges  never  before  conferred  upon  any  corpo¬ 
ration  in  the  history  of  this  Government  ?  What  reason  is  there 
for  clothing  these  with  the  power  of  the  United  States — for 
placing  a  Justice  of  the  Supreme  Court  at  their  command,  as 
if  he  were  the  sheriff  of  a  county — for  exempting  these  corpo¬ 
rators  from  the  process  of  the  State  courts,  and  holding  them 
and  their  servants  amenable  only  to  the  jurisdiction  of  the 
Federal  Courts?  Why  subordinate,  practically,  works  already 
in  being  to  their  enormous  power  ? 

Is  this  to  be  a  Government  work  ?  Not  so.  They  are  cor¬ 
porations  as  strictly  and  essentially  private  in  character  and 
interest  as  any  now  chartered  by  a  State.  From  the  moment  that 
their  existence  is  authorized  by  law,  they  are  as  independent 
of  Congress  as  any  State  corporation  possibly  could  be.  If  the 
public  complain  of  the  defaults,  of  the  delays  and  discomforts 
of  existing  roads — that  its  mails  are  not  delivered  in  time — 
that  passengers  fail  to  pass  by  rapid  connections  over  existing 
routes — how  would  the  public  be  bettered  by  this  Bill  if  it 
became  a  law  ? 

If  the  lines  which  the  new  companies  shall  locate  or  adopt 
be  circuitous  routes — if  they  never  make  proper  schedule  time 
— if  their  rails  are  what  they  please — their  outfit,  fixtures, 
structure,  and  cars  for  first-class  passengers  be  not  what  they 
should  be — how  will  that  affect  the  charters  which  Congress  is 
called  upon  to  grant? 

These  charters  will  remain  operative  and  in  force,  enriching 
their  proprietors  by  means  of  the  extraordinary  powers  vested  in 
them  by  a  law  of  the  United  States ,  whether  they  sell  their  grant 
or  keep  it — whether  their  action  be  in  accordance  with  the 
terms  of  their  grant — or  whether  it  be  worse  even  than  the 
conduct  of  any  railroad  corporation  which  has  hitherto  been 
assailed  by  the  friends  of  the  monopolies  authorized  by  this 
Bill. 


The  Bills  before  Congress  are  manifestly  charters  seeking 
subscribers,  not  subscribers  seeking  charters.  One  of  the  pro¬ 
posed  lines  is  for  the  benefit  of  the  Pennsylvania  Railroad? 
which,  itself,  has  opposed  and  protested  against  its  passage. 
The  needed  purchaser  does  not  want  the  dangerous  commodity. 

But  Mr.  Sherman  is  asked,  especially, why  new  roads  are  neces¬ 
sary  in  every  State  named  in  his  Bill,  except  in  the  State  of 
Ohio .  In  that  State  alone ,  the  new  railroad  lines  are  authorized 
to  use  existing  lines.  Everywhere  else  such  use,  coalition,  or 
consolidation  is  impossible,  unless  the  consent  of  Congress  is 
hereafter  given. 

VINDEX. 

Washington,  January ,  1869. 


